Tranten and Croft and Anor

FAMILY COURT OF AUSTRALIA

TRANTEN & CROFT

[2007] FamCA 703

FAMILY LAW - CHILD SUPPORT - Application for departure

Bankruptcy Act 1966 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)

Taylor and Taylor (1979) FLC 90-674; 5 Fam LR 289

APPLICANT MOTHER:

MS TRANTEN

RESPONDENT FATHER:	MR CROFT
SECONDNAMED RESPONDENT:	AM PTY LTD

FILE NUMBER:

MLF

5277

2003

DATE DELIVERED:

10 July 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Kay J

HEARING DATE:

9 and 10 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms C on behalf of the Trustee in Bankruptcy of the Respondent Father’s Estate, there being no appearance by or on behalf of the respondent father

APPEARANCE FOR THE SECONDNAMED

RESPONDENT:

Ms D as Director of the Secondnamed Respondent

Orders

That there be a departure from administrative assessment:
(a)for the period commencing 1 July 2001 to 31 December 2001 by substituting the child support income amount of $67,157 for the sum of $57,500 referred to in the child support assessment which issued on 3 October 2002
(b)by discharging the child support assessments for the period 1 January 2002 to 17 June 2003 and substituting therefore an administrative assessment to be calculated on the basis that the liable father’s child support income amount was $67,157 and the mother’s child support income amount did not exceed the disregarded income amount.
(c)for the period from 7 April 2005 until 25 August 2005 child support is to be calculated on the basis that the father’s child support income amount was $55,000;
(d)for all periods commencing on or after 1 January 2007 until further order the father’s child support income amount is to be $67,500.
That in addition to any periodic child support payable the respondent father is to pay to the mother by way of contribution to the children’s school fees:
(i)from 1 July 2002 until 30 June 2006 the sum of $2500 per annum,
(ii)from 1 July 2006 until 30 June 2007 $1750 and
(iii)from 1 July 2007 until further 50 per cent of A’s school fees in the Catholic school system. The mother is to forward to the father at the end of each 12 month period commencing 1 July 2007 via the Child Support Agency a statement of the fees paid and the amount that she seeks to be reimbursed pursuant to this order. The Child Support Agency is requested to forward the request to the father at his last known address.
In addition to all the sums referred to above the father is to pay to the mother:
(i)the sum of $4150 for dental and orthodontic expenses relating to the child S for the period from 1 January 2004 until 30 June 2007.
(ii)50 per cent of any ongoing orthodontic and associated medical and hospital fees reasonably required by the child S to be calculated after any Medicare rebate. Once those fees have been incurred the mother is to forward to the father via the Child Support Agency a statement of the amounts that she seeks to be reimbursed. The Child Support Agency is requested to forward the request to the father at his last known address.
That Order 2 of the orders made by Riethmuller FM on 14 October 2004 be discharged.

IT IS FURTHER ORDERED

That the father pay towards the mother’s costs of these proceedings the sum of $1000.
That all extant applications including the further amended application filed 2 July 2007 be otherwise dismissed and the matter removed from the pending cases list.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5277 of 2003

MS TRANTEN

Applicant Mother

And

MR CROFT

Respondent Father

And

AM PTY LTD

Secondnamed Respondent

REASONS FOR JUDGMENT

This is the hearing of an application, seeking a departure from administrative assessment of child support and a number of other related orders.
The proceedings began with an application that was filed in December 2003 in the Federal Magistrates Court. I will not trace its somewhat convoluted path to trial before me today in July 2007 but there are several volumes of files, both in the Federal Magistrates Court and in this Court, relating to the application and associated interlocutory matters.
The application has now morphed, if that's the right word, into its final form, being a document headed Further Amended Application for Final Orders filed on 2 July 2007. It is in a similar form to an earlier amended application that had been filed in April of 2007.
The proceedings before me are complicated by the absence of the respondent father. He has no address for service of recent years and orders have been made for substituted service upon him by delivery of the documents to the Child Support Agency with a request that the Agency forward them on to the father. So I am assisted in the sense that there is no opposition to the application in a formal sense but I am hampered because I do not have the necessary information as to the father's financial circumstances throughout the various periods that are covered by the application and it makes the task of complying with the legislation and making an order that is just and equitable all the more difficult.
It may be that the father is unaware of these proceedings today or it may be that he has chosen not to attend. If it is the former, then providing he can explain his absence and is dissatisfied with the orders that I make, he has available to him potential remedies in accordance with the decision in Taylor and Taylor (1979) FLC 90-674; 5 Fam LR 289, namely to ask the Court to set aside any order I make and reconsider the matter in his presence.
This matter concerns child support payable by the father in relation to two children, S born in May 1989, and A, born in May 1996. The applicant in the proceedings is the children's mother.
The parties married in January 1999, separated in August 2000, and have, I would assume, subsequently had their marriage dissolved. That may not be a valid assumption but I do not think it is a necessarily relevant consideration.
There have been ongoing child support assessments ever since 1 July 1991. Both the mother and the father appear to have been dissatisfied at various times with the forms of the assessments and there have been a series of administrative reviews, followed by objections, and they culminated in the commencement of the proceedings in December 2003 by the mother seeking departure orders from the Court in relation to the first assessment and the subsequent assessments.
As indicated, these proceedings have now lasted for several years and the current application before me endeavours to have me review all of the operative assessments that relate to the period from the first assessment, covering 1 July 2001, to the most recent assessment which takes us to March 2008.
Of the very many assessments that have issued, the sequence of what I understand to be the operative notices of assessment is as follows:
·    the assessment issued 3 October 2002 for the period 1 July 2001 to 31 December 2001 based on a child support income amount of $57,500, is for an annual rate of $12,695.
·    For the period 1 January 2002 until 17 June 2003, the assessment is based purely on an annual rate fixed by the review officer of $14,000.
·    An assessment issued on 10 June 2004 for the period 18 June 2003 to 30 June 2004, based on a child support income amount of $8840 as a result of an estimate of taxable income provided is for an annual rate of $260.
·    An assessment issued 17 March 2006 for the period 1 July 2004 to 23 August 2005, on a child support income amount of the returned taxable income for 2003-2004 of $11,232, is an annual rate of $260.
·    By an assessment issued 16 March 2006 for the period 24 August 2005 to 30 September 2005, on a child support income amount of $67,500, for an annual rate of $14,729.
·    By an assessment issued 16 March 2006 for the period 1 October 2005 to 31 December 2005, based on the child support income amount of $67,500, the annual rate is $14,590.
·    By an assessment issued 23 March 2007 for the period 1 January 2007 to 21 March 2007, based on a child support income amount of $55,229, being the 2005-2006 taxable income, the annual rate is $10,957. This is the last of the assessments that relate to both children.
·    For the period from 31 May 2007 until 31 March 2008, by an assessment issued 23 November 2006, on a child support income amount of $55,229, the annual rate is $7305.
I should say that the mother's income as represented by the various assessments that I have referred to is, in round figures about $28,000 per annum, save that there is no reference to the child support income amount of the mother for the period January 2002 through to June 2003. I will return back to the mother's financial position in due course.
The gravamen of the mother's material is that the amounts relied upon as representing the father's capacity to meet his obligations to pay child support have been inaccurate and that the father has demonstrated a greater earning capacity than that which has been disclosed to the Child Support Agency or relied upon by them in determining child support.
The first ground that she seeks to rely upon as the basis for departure of administrative assessment is that set out in paragraph 117(2)(c)(i) of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) namely that the administrative assessments resulted in unjust and inequitable determinations of the level of financial support to be provided by the liable parent for the child because of the income and earning capacity of the liable parent.
There are some supplementary grounds that she seeks to rely upon and I will deal with those separately but they are:
· that the costs of maintaining the children have been significantly affected because of the way the children were and are being educated in a manner that was expected by the parents; and,
· because of the special needs of the children in relation particularly to the orthodontic needs of the child, S.
I will return to the educational issue and the orthodontic issue in due course.
In order to keep some semblance of control over what is a very extensive file and a very extensive amount of material that the mother has placed before the Court, I have endeavoured to break down the issues to their component parts and I propose to deal with them in a chronological basis.
[When I delivered these reasons orally I overlooked and did not have drawn to my attention the provisions of s 118(2B) of the Act that came into effect on 1 January 2007. Had I properly considered them they may well have precluded me from making any orders that had effect prior to June 2002.]

2001‑2002

Firstly, for the financial year ending 2001‑2002, the child support assessments cover that by the first notice which relies upon a child support income amount of $57,500 which covers the first six months of the financial year, and secondly, by a fixed annual rate assessment of $14,000 for the balance of the period.
The Review Officer's basis for the fixed annual rate includes some allowance for the high education costs involved with the children. I do not understand it to be my position that I am here doing an analysis of whether what the Review Officer did was appropriate. My function is to determine whether there should be a departure in the annual rate as fixed by reference to the various criteria set out in s 117, bearing in mind the objectives of the Act that are set out in s 4, some of which are contradictory, and the additional objects that are set out in s 114.
Perhaps it is convenient just for the moment to draw attention to those sections. Section 4 provides that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents and it then goes on to provide
(2) Particular objects of this Act include ensuring:
(a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b)that the level of financial support to be provided by parents for their children should be determined in accordance with the legislatively fixed standards; and
(c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them;…
Section 114 provides
Additional particular objects of this Division include ensuring:
(a)that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b)that parents share equitably in the support of their children.
There is, however, a certain irony in making reference to object 4(2)(c) in light of the history of these proceedings. That is the object that says the Act is aimed at ensuring that persons who provide the ongoing daily care of the children should be able to have the level of financial support provided for the children readily determined without the need to resort to court proceedings. If ever there was a case that demonstrated the irony of that object, this is it.
The evidence before me of the husband's earning capacity for the year 2001‑2002 is the document that purports to have been prepared on his behalf by R Company, being an estimate of his income tax assessment for 2002 and that determines that his income appears to have been $67,157 and in addition he had further taxable income of $13,820 in relation to a lump sum which the mother asserts comes from him cashing in some superannuation under the hardship provisions.
The reality of that, although he has had the cash in his hand, is that it demonstrates to me that he had the capacity to earn in 2001-2002 to the extent of $67,157. I am thus satisfied that the assessments that are based on some other historical figure, namely the 2001 taxable income, did not accurately reflect a fair representation of the father's capacity to provide for child support in 2002. I ignore for the moment the issue of the superannuation that he cashed in, as I have no material before me that would assist me in determining whether it would or would not be appropriate to bring that sum for the purposes of enabling him to provide even further child support towards his children.
I am hampered by his absence from these proceedings, but I do not perceive in the circumstances that it would be either just and equitable or otherwise proper to bring it into account several years later without proper explanation available as to how and why circumstances justified him being able to seek the release of some superannuation under the hardship provisions.
I am satisfied that there exists a ground for departure for the 2001-2002 period to the extent of the substitution of income amount of $67,157 as the child support income amount. If I am not otherwise persuaded, then leaving aside for the moment the issues of the education and dental expenses, the order that I would propose to make would be to direct the Agency to substitute for the child support income amount for the husband for the financial year ended 30 June 2002 the sum of $67,157 and then make its calculations accordingly. This would give some weight to the process to be adopted under s 4(2)(b), that the level of financial support to be determined in accordance with legislative standards.

2002-2003

I turn now to the next financial year period which is 2002-2003. The balance of that period is simply dealt with by the assessment of an annual rate of $14,000 and I have already noted that that assessment seems to include some educational expenses. $14,000 per annum is 27 per cent of $51,851. When I look at the assessments that issued in 2001 and 2004, I note that the exempted income amount in 2001 was $10,482 and it had risen to $12,315 by 2004. I do not have before me, on the notice of assessment the exempted income amount for 2003 but assuming that it is somewhere between the two figures, allowing, say, $11,500 as the exempted income amount, an assessment of child support at $14,000 represents a child support income amount of $63,351. However, it is overly simplistic to do that piece of arithmetic because as already indicated, built into the $14,000 was some allowance for the school fees.
The evidence from the mother is that the school fees for the relevant period for both children were about $4,000. Assuming a liability to meet half those school fees at $2000, then the equivalency of the child support as ordered, by reducing the child support from $14,000 per annum to $12,000 per annum to make allowance for the school fees component and doing the same mathematics again, that would be 27 per cent of $12,000 and allowing the exempt income amount of $11,500. That is the equivalent of the husband earning $55,944 per annum.
I have no available evidence of the husband's 2002-2003 income, save that his employer made contributions to the C Industry Superannuation Fund known as C Super to the extent of about $4000 during the period 1 July 2002 to 30 June 2003. I have no material before me that would indicate that the husband's capacity to earn during 2002-2003 was any less than that which he earned in 2001-2002. Based upon that assumption and the fact that he had superannuation payments made to him throughout the year, and based on his absence from these proceedings, knowing that this claim has been extant now for some four years, I would be satisfied that the evidence allows me to conclude that assessments for the period covering the financial year to 30 June 2003 should be based on similar child support income amounts to that which was utilised for 2002.

2003-2004

I move to the period covered from 18 June 2003 to 30 June 2004, the notice of assessment is based upon a taxable income of $8840 which is represented by Centrelink payments received by the husband throughout that period. There is some evidence contained in the mother's material that the husband had claimed and had medical evidence to support that he had been unfit for work due to depression, ironically caused by these proceedings. The mother is sceptical of the quality of that medical evidence and the doctor has not given evidence in the proceedings directly before me.
She is, however, able to point to material that is inconsistent with the husband having been only in receipt of social security/Centrelink payments throughout the relevant period. Firstly, there is evidence of one private investigator who saw the husband in January 2004 and February 2004 either dressed for work or at work doing some building labourer's work.
There is also evidence that as a result of subpoenas that were issued to the husband's father, who trades under the firm M, and the company operated under the name AM Pty Ltd of moneys paid by M to AM Pty Ltd for services that apparently were rendered by the husband providing his labour. The documents which are Exhibit H1 to the wife's current affidavit do not identify with particularity who it is that the payments are made in respect of but they have been produced to the Court in response to a subpoena, asking for the pay records of the husband.
They show as follows: from the bank records, M pays the company - which I will use the initials AM –
on 12 August 2003,            $2090;
on 5 September 2003,         $2640;
on 3 December 2003,          $1100;
on 13 January 2004, $2860,
on 11 March 2004,               $1490.

In addition, AM renders an account to a period 27 August 2003 to 30 October 2003 for $2200 inclusive of GST. There is no record of the account having been met.
The sums paid by M to AM, plus the account rendered total $12,380 inclusive of the period before 12 August 2003 through to 11 March 2004, about six or seven months. In addition, there is an account of the husband working for four days in August 2003. That is Exhibit E7.
So when the Centrelink records suggest that the husband was not earning any money during 2003-2004, the M documents make it abundantly clear that the husband had some earning capacity during that period of time to supplement his Centrelink payments.
I am not prepared to conclude, as is urged upon me by the mother, that I should make a finding that for the relevant period 2003-2004 the husband had an earning capacity of $76,000 and he was malingering. The evidence of a psychiatrist which forms part of the mother's exhibits, particularly Exhibit M1 dated 16 September 2003, is that the father was certainly clinically depressed. The doctor refers to him as "a very sad man, embroiled in a very bitter access conflict with his ex-wife".
Whilst the doctor's reliance upon the assertion that the father has not worked for many months may be an inaccurate one, I cannot ignore the other findings of the doctor that the father was a clinically depressed person. In those circumstances, in light of the other file notes that appear on the next page, page 83 of the exhibit file and page 84, where the doctor comments of the father:
He is totally distraught over the injustice where he appears to have no access to his children, he finds that any arrangements that are made, are broken by the wife, and the humiliations he and his family are subjected to by her wilfulness -
I am satisfied he had a limited earning capacity during the period 2003-2004.
In the circumstances, whilst there is some evidence of the husband exercising an earning capacity, the effect of that evidence would be to deplete his entitlement to Centrelink payments and would make him liable for repayment to them in some sum - I am not quite sure on what basis - and bearing in mind that the payments that M have made to AM appear to include GST which would not be representative of the amounts that would flow to the husband's earnings, any change that I make for the 2003-2004 period is likely to be of an insignificant amount. It is probably best dealt with by leaving the husband liable for school fees during that period which I will come to in due course, rather than endeavouring to interfere with the child support assessment, because even if I conclude that the husband had a capacity beyond the $8840 relied upon for the purposes of calculating the assessment, the extent to which I would do so would not be likely to be more than add, say, another $10,000 by way of earning capacity, leaving him - and I do this in very round figures - with, say, a $20,000 earning capacity during 2003-2004. After allowance of an exempted income amount, I would be left with applying the 27 per cent to $8000 which would make a total liability for the year of $2160. That would be more than absorbed in relation to the school fees orders that I intend to make. I would not otherwise be capable of being satisfied that the husband, even though the formula throws up some liability, would have actually had the capacity to meet that liability during the relevant period after he had met his own personal needs. So I do not propose to make any departure order for 2003-2004.

2004-2005

I move to 2004-2005. Once again, the assessment is for a minimum rate of $260 per annum based on a child support income amount of $11,232. I have evidence of a private investigator, Mr E, that on 13 August 2004 and 16 August 2004, the husband was observed dressed for work in the building trade. I have evidence that he was working extensively through 2005 for a firm known as S Pty Ltd commencing on 7 April 2005 and that for the period from 7 April 2005 until 30 June 2005, he earned $13,750. Extrapolating that out on an annual basis, it would be the equivalent of $55,000 per annum. It seems to me that it is appropriate that there be a departure order in relation to the period from 7 April 2005 to 30 June 2005 to reflect that earning capacity. I will make the order in due course, again subject to s 117(4) considerations.

2005-2006

The husband continued working for S Pty Ltd in 2005 beyond 30 June and worked - and I have records of his pay - for July and August 2005 with that employer. The total amount earned is $10,366, which rounds up to $10,700. In addition, he began work in August 2005 with W Company and received from that company in the financial year, ending 30 June 2006, some $60,400. It demonstrates that his gross earnings for the financial year from both sources is about $70,772, making reference to page 115 of the exhibit to the wife's second affidavit.
The child support assessments for that relevant period are firstly until 23 August 2005 at the minimum rate and then for the balance of the period are based on a sum said to be set by a change of assessment, $67,500. I have clear evidence that the gross earnings were $70,772. I cannot be satisfied absent the tax returns and the like that the figure relied upon is so disproportionately wrong to demonstrate that I ought be satisfied that a ground for departure exists in relation to the income-earning capacity of the husband during the relevant period. I do not propose to make any adjustment other than extend the previous one, that is the $55,000 annual rate, out to 23 August 2005. Otherwise, there will be no change to the 2005‑2006 calculations.

2006 onwards

The post June 2006 assessments rely on a taxable income for 2005-2006 of $55,229 which is a significantly disparate sum that had already been demonstrated to have been earned at $70,772. Absent the husband participating in these proceedings, I cannot be satisfied that his tax returns accurately reflect his true taxable income, when I have evidence of gross income received by him that far exceeds the sum relied upon. The safest ground for me in the circumstances would be to have a consistent figure approach and to rely upon the $67,500 that had previously been utilised for 2005-2006 as an appropriate base for calculating child support assessment for 2006-2007 and onwards.
That leaves some scope for a differential between actual income which has been proven at $70,772 and taxable income which is the base used for the calculation of the formula, but not such an unexplained disparate gap of that relied upon by the child support registrar.
So summarising, subject now to giving consideration to the education expenses, the dental expenses and the requirements under the legislation under s 117(4), I would be prone to make some departure orders that would adjust the child support income amount for the various periods that I have discussed. I will return to those orders in due course.

Education expenses

It is convenient now to move to the education expenses issue which is a discrete issue. The mother has tendered enrolment forms for the children, S and A, in Catholic schools, signed by both parties after the parents separated in June 2001. She has also provided me with schedules of the children's school fees. The requirement that I have to be persuaded of as to the existence of a ground for departure under s 117(2) is the requirement that in the special circumstances of the case, the costs are maintained and the children are significantly affected because of the child being cared for, educated or trained in a manner that was expected by his or her parents. It is clear from the enrolment of the children in the Catholic school system that that was signed by both parents, that that was the manner that they expected the children to be cared for or trained.
It is not so clear as to how that has significantly affected the costs of maintaining the children because I have an absence of a comparative cost of maintaining the children in the state system. I do have evidence of the mother of the school fees applicable to each of the children. If I may tabulate these as follows:
2002, S $3008, A $860;
2003, S $3005, A $960;
2004, S $3895, A $995;
2005, S $3590, A $1050;
2006, S $4660, A $1175;
2007, A $1251,
and A's ongoing expenses. He is only in Grade 5. It is not possible to predict what his ongoing expenses are likely to be for the next seven or eight years.
As I have said, it is hard to determine the extent to which those fees actually significantly affect the cost of maintaining the children other than to accept as a general rule that fees in government schools are going to be significantly more modest.
The mother asks for half the fees only. Given that the earning capacity of the husband has been significantly greater than that of the wife throughout the relevant periods, save for 2003-2004 where he had been suffering from some significant psychiatric illness, it seems to me that the differential between what is the extent of the significant effect of the school fees over and above government schools becomes less important because the husband is not being asked to proportionately share in the fees, having regard to the financial position of each of the parties, but simply to contribute half of the fees.
I think the ground is established and for reasons of simplification and ease of enforcement and the like, albeit the difficulties that will flow with enforcement, having regard to the fact that on 20 June 2006 the husband signed a debtor's petition and was declared bankrupt in relation to his child support debt and in relational to a debt that he claimed to owe the ANZ Bank $18,458 and that all of his property presently vests in the trustee in bankruptcy, save for his exempt property.
So in a sense, the orders I make in this exercise are likely to be somewhat academic. But having regard to all that, I think that again, subject to s 117(4) considerations, the orders sought by the wife should basically be accepted and for ease, I will, rather than simply make an order for 50 per cent of school fees, I will fix lump sums that approximately represent those figures for each of the years. As you can see from the figures I have already discussed, there has been a sliding scale from 2002 to 2006 up from about $4000 up to $6000 for each of the years.
It is probably most comfortable for me at this stage to provide an obligation for the father, trying to bring the matter into synchronisation with the child support years to add for each child support year a school fee obligation of $2500, from the child support year commencing 2002-2003. I appreciate that the child were in school for the second half of the child support year 2001-2002 but any amount that the wife is having to bear for that first half-year will be absorbed into the latter years in the rough figures that I have adjusted, rather than do more precise figures. I will make orders in due course again, subject to looking at s 117(4). But in addition to the sums provided by way of administrative assessment calculated on the basis of different child support income amounts, there will be an additional sum of $2500 payable in respect of the school fees each year.
That will take us to the 2006 year. For the years 2006-2007, the figure is slightly different because the child, S, has not been present for half that time. Doing the best I can there, we have a half-year of S at $2330, a full year of A at, say, $1200, which is $3530, half of which is $1750 in round terms, so for the 2006-2007 year, it will be $1750, and thereafter it will have to be expressed in the unfortunate terms of 50 per cent of A's school fees, except the difficulty with A is that I have only got an agreement to A attending primary school and I do not have an agreement of A attending at secondary school. So it is difficult for me to conclude as to the manner in which A could be expected to be educated or trained because there is no evidence of it, other than by implication that S was sent to a fee-paying Catholic school for his secondary education, then the same would be expected of A.
I make that caveat, and if the father wants to do something about it, then he is at liberty to endeavour to persuade somebody in due course that he should be relieved of his obligation to pay any school fees for A in the Catholic school system.
I should also note that the mother asked me to include in the school fees, uniforms and books. I indicated my reluctance to do that in the course of discussion on the basis that those would be normally met no matter which school the children went to and would not fit within the concept of significantly affecting the costs of keeping the children at school.

Dental fees

I then turn to the final matter that comes within the application and that relates to the dental fees for S. I am satisfied on the evidence that the child has special needs for dental treatment. That matter can be seen from the wife's affidavit, pages 15 and 16 thereof, and the exhibits to the material indicating the extent that she has already had to meet orthodontist's fees. The orthodontist's fees accounts commence in October 2004 and are continuing. To date, they are said to total $8300 and there is likely to be ongoing expenses. It seems to me that these are extraordinary expenses that should be shared between the parties, again subject to my s 117(4) considerations and I would propose in due course to make an order to that effect. That may entail the payment of $4150 for fees already expended and then 50 per cent of ongoing orthodontic and associated fees, medical and hospital fees, after any Medicare rebates.

Section 117(4)

I turn finally to the considerations of s 117(4). Once I am satisfied of the existence of a ground for departure, I have to determine whether it is just and equitable to make an order and in so doing, I have to take into consideration the matters set out in s 117(4) of the Act. The difficulty here is that one serious consideration is absolutely missing from the evidence. Matters I am obliged to take into account include the needs of the children which I have already made reference to and in particular, the income-earning capacity and property and financial resources of each parent who is a party to the proceedings.
Given that this has been a wide-ranging inquiry over a period of five years makes the task all the more difficult, when I have no evidence before me, reliably, of the husband's financial resources or of particularly the commitments necessary to support himself. In other words, I cannot work out from what his earnings and his property has been how much spare he had to provide to support his children.
Clearly, the wife on the material has not been in a position to provide more than a reasonable share. She asserted to me that her earnings averaged about $25,000 a year as a nurse. The records from the Child Support Agency in the notices of assessment themselves would say that is a slight underestimation, but the evidence would not take her earning capacity beyond $30,000 during those years. She has to support herself, based on reasonable costs and needs, and with that which is then left over to provide for support of the children, she would be unlikely to make a great inroad into meeting the children's needs. I rely on the Lee and Lovering scales as to the costs of maintaining children to give evidence of the fact that growing children cost serious money to maintain.
The wife has deposed to the fact that she has been obliged to borrow from her parents who can ill afford to provide for her and their grandchildren and to rely upon charitable institutions for the provision of goods and services. I am satisfied that whatever the husband can afford to pay as a contribution towards the child support by way of administrative assessment or otherwise, the wife has a reasonable need for it and has had throughout each of the years. The difficulty is that I do not know what it is that the husband can afford to pay.
The wife's capital position is that she has an equity in a modest home and a very old car, otherwise she has no capital. The husband's capital position is unknown, but he received payment from the property settlement, I think around about $50,000 or $60,000, a modest sum. He has now declared himself bankrupt and as yet, a statement of assets and liabilities has not been prepared.
The operation of the Bankruptcy Act 1966 (Cth) is such that the child support obligation can be proven in the bankruptcy but it will survive the bankruptcy. Whether there is then property available for distribution or ever becomes property available for distribution will be a moot point. So far the mother has not shown any lack of persistence in these proceedings in endeavouring to chase what may be the unchaseable. However, it should not be of concern to me at the moment, other than insofar as it moves me to the balance of her application which seeks enforcement orders in relation to any arrears that are created as a result of these orders.
She has tendered to me a notice she has given to the Child Support Agency in relation to her request to take over the enforcement proceedings under s 113A of the 2006 amendments to the Child Support (Registration and Collection) Act 1988 (Cth) legislation, but I am not satisfied, with the husband being a bankrupt, that he has any assets visibly available presently that I can make enforcement orders about and I certainly cannot make orders relating to his superannuation funds to which he presently has an entitlement until such time as he meets the necessary prerequisites for age and retirement to obtain his superannuation. I do not perceive from the age of the children that the husband is close to retirement age. I have been informed from the bar table that the father is only 40 years of age.
The net effect of all of this is that I think there are grounds for departure and that the best that I can determine the order that is appropriate to be made in the circumstances, absent the husband participating in the proceedings and bearing in mind the very many disparate issues that I have to give consideration to under s 117 and bearing in mind the objects of the Act that I have already identified, I think the appropriate orders that I should make in the case relating to these matters are as set out at the commencement of these reasons.

The second named respondent

In order to maintain some sense of order in these proceedings, I asked the applicant to identify those parts of her application that dealt exclusively with the second‑named respondent so that the further attendance of the second‑named respondent during the issues that concern the first‑named respondent would become unnecessary.
In response I was been directed to parts of the current further amended application that now appears in paragraphs 21 and 26.
Paragraph 21 asked me to make an order to set aside the sale of a Mitsubishi Magna motor vehicle, … ,
…to make the transaction void and seizure and sale of the said vehicle to pay child support, school and dental fees and court Ordered (sic) costs to satisfy lump sum payment, payable forthwith.
Paragraph 26 sought an order that the second‑named respondent
…be dealt with for contempt in that an Order was made on 14 October 2004 restraining both respondent parties from dealing with vehicle […], and the second named respondent has wilfully disregarded this Order (sic).
In relation to the order sought under paragraph 21, since the filing of the application, prior to its amended form on 20 June 2007, the father was declared bankrupt on a debtor's petition. The effect of that bankruptcy, whilst it remains undischarged, is that for three years from 20 June 2007 all of the assets of the debtor now pass to the trustee in bankruptcy. Accordingly, there would be little utility in making the order sought in paragraph 21 even if I thought the facts of the case rendered it appropriate, because any setting aside of any transaction, if that power exists, would not be to make the asset available for seizure and sale to pay child support, it would simply add to the amount of moneys available to meet all of the creditors of the bankrupt. Absent any application in the bankruptcy to chase the assets, it would be inappropriate for me to at this stage make such an order.

As to the order sought in paragraph 26, which I read to be an application asking for me to be satisfied of a contravention of an injunction on behalf of the company, I made directions for the filing of affidavit material in support of the applications. It is admitted by the applicant that there is no evidence in her material to indicate a breach of the injunction. Accordingly, it would be quite inappropriate for me to require the matter to be tried and determined absent any evidence.
I have an oral application for discharge and interlocutory injunction that was made by Riethmuller FM on 14 October 2004, restraining the husband and AM Pty Ltd, by themselves, their servants or agents from disposing of two named motor vehicles, a Mitsubishi Magna and a Ford utility. As these proceedings are now coming to an end, and as the husband's property now vests in the official trustee in bankruptcy, there appears to me to be little utility in maintaining the injunctions, particularly in light of the application by Ms D, the director of AM Pty Ltd, for a discharge of the injunction made orally to save her coming back with more appropriate material as to the history of her dealings with these motor vehicles.
In any event, the vehicles seem to be of not particularly great value, although no doubt from the mother's perspective every dollar that she can get out of these proceedings the easier her life and that of the children will become.
There is an application for costs in these proceedings. The litigant appears in person at this stage, although she has appeared via Legal Aid in previous hearings and she tells me that she has an account from Legal Aid for slightly over $9000 which is enforced by a caveat over her property. I have not heard from the Legal Aid Commission in the proceedings relating to the question of costs. What I propose to do at this stage is make an order for costs not including the legal aid costs. If the Legal Aid Commission are motivated to move on behalf of the mother for a claim for costs, then that can be entertained in due course. Presently, I do not propose to deal with that.

I certify that the preceding Seventy Three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate:

Date: 17 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TRANTEN & CROFT

[2007] FamCA 703

10 July 2007

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Family Law

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